Ward v. Lee

• Decision Date: 18 November 2020
• Docket Number: 19-CV-03986 (KAM)
• Parties: Anthony Ward, Petitioner, v. William Lee, Respondent.
• Court: U.S. District Court — Eastern District of New York

Anthony Ward, Petitioner, v. William Lee, Respondent.

19-CV-03986 (KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 18, 2020

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

Petitioner Anthony Ward ("Petitioner"), proceeding pro se, filed this petition for a writ of habeas corpus on July 3, 2019, challenging the constitutionality of his 2010 state court conviction in the Supreme Court of Nassau County, for burglary in the first degree, assault in the second degree, petit larceny, and resisting arrest. (ECF No. 1, Petition for Writ of Habeas Corpus ("Pet."); ECF No. 7, Affidavit and Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus ("Opp.")) In 2011, Ward was sentenced to concurrent terms of imprisonment, the longest of which was twenty-two and one-half years to life. (ECF No. 7-22, Sentencing Hearing Minutes at 16.) The petitioner asserts that the conviction violated his constitutional rights because (1) the state court erred in its consideration of whether petitioner's rights under the Fourth Amendment were violated, (2) the New York Appellate Division erred in finding that an unduly suggestive showup¹ was harmless error, (3) the state court erred in rejecting petitioner's claim that the prosecution knowingly entered perjured testimony, (4) petitioner received ineffective assistance of trial counsel, (5) the people committed a prejudicial discovery violation, (6) the indictment was improperly amended and (7) the verdict at trial was against the great weight of evidence. (Pet. at 2-4.) William Lee, the nominal respondent ("respondent"), opposes the motion as not cognizable, procedurally barred, and without merit. (See generally, Opp.) The court agrees. For the foregoing reasons, the petition is respectfully denied in its entirety.

BACKGROUND

I. Factual Background

Petitioner was convicted in connection with a burglary committed on the evening of September 10, 2009. (Opp. ¶¶ 1-7.) Paulina Cuestas, the victim of the crime, walked into her bedroom and saw petitioner holding her purse. (ECF No 7-6, Trial Transcript, 725, 728, 730.)² Petitioner quickly exitedthrough the window and Mrs. Cuestas screamed. (Tr. 725, 728, 730.) William Cuestas, Paulina Cuestas' husband, upon hearing his wife's screams, entered the bedroom and looked out the window. (Id. 798-799.) Shortly after hearing his wife's screams, Mr. Cuestas told his son to call the police. (Id. 747-748.) He then went outside, where he saw a ladder abutting the window as well as a cell phone, the purse, a screw driver and a bicycle lying on the ground. (Id. 747, 798-799, 802.) He picked up the cell phone and placed it on the windowsill. (Id. 802-04.)

Minutes after responding to the Cuestas' 911 call, two police officers saw petitioner a few blocks away from the scene of the crime, and matched him to the description provided by Mrs. Cuestas. (Tr., 392, 525-526, 751.) The petitioner attempted to run away from the officers, and when the police officers were able to apprehend petitioner, he fought the officers, screaming, punching, kicking and biting one of them in an attempt to escape. (Id. 361, 363-64, 398-402, 528-30, 560-68, 586-94, 630-641 645, 657-61.) One of the arresting officers, Officer Collins, suffered injuries while making the arrest, caused by multiple punches and bites delivered bypetitioner. (Id. 586-94, 600-03, 630-641, 647-49; ECF No. 7-14, People v. Ward, Decision and Order dated April 23, 2014.)

As soon as the officers arrested petitioner, they brought Mrs. Cuestas to the scene of the arrest. (ECF No. 7-14, People v. Ward, Decision and Order dated April 23, 2014.) The officers asked Mrs. Cuestas if she recognized petitioner, but Mrs. Cuestas' was crying uncontrollably and did not try to identify petitioner. (Tr. 734-38, 748-54, 758-64.) Approximately thirty minutes later, Mrs. Cuestas was escorted back to the scene of the arrest. (Id. 483-485, 734-38.) Petitioner was brought within 30 feet of defendant and his face was illuminated, upon which time Mrs. Cuestas gave a positive identification. (Id.) Petitioner was handcuffed and restrained by police officers at the time of the showup. (Id. 482-485; ECF No. 7-14 at 1-2.)

Mr. Cuestas told officers at the scene that the cell phone discovered in his yard was not his. (Tr. 802.) The serial number on the phone was registered with petitioner according to his cell phone provider. (Id. 352-54.) An amount just short of $500 was found missing from Mr. Cuestas' wallet, which had been in the bedroom. (Id. 805-807.) Petitioner was arrested with $495 in cash on his person. (Id. 663-65.)

Following a jury trial in New York Supreme Court for Nassau County, defendant was convicted on October 6, 2010 ofburglary in the first degree, assault in the second degree, petit larceny and resisting arrest. (Tr. 1152-1156; Opp.¶ 7.) On March 8, 2011 he was sentenced, as a repeat violent felony offender, to twenty-two years and a half year to life imprisonment. (ECF No. 7-22, Sentencing Hearing Minutes at 16.)

II. Motion to Set Aside the Verdict

After the verdict, but prior to sentencing, a prosecutor who had tried the case found a copy of the crime scene report. This copy, unlike the one which had been previously disclosed to the defense, included a handwritten note about the cell phone recovered from the Cuestas' yard. The handwritten text read, "Opened on 9/29/10 as per Det. Howe to check serial: M.T." (ECF No. 7-23, Defendant's § 440 Motion, Ex. L; ECF No. 7-8, Defendant's § 330 Motion, Ex. H; ECF No. 10-3, Petitioner's traverse, Ex. L.) The note showed that a police officer removed the back of the telephone and the battery within in order to view the serial number. (Id.) After the prosecutor discovered the copy with the note, she turned the copy over to the defense. (ECF No. 7-8, Defendant's § 330 Motion, ¶ 15.)

Upon receiving the crime scene report with the handwritten note, petitioner filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law 330.30 for newly discovered evidence. (ECF No. 7-8 at 1-13.) Petitioner argued that the prosecution failed to properly disclose the copyof the crime scene report and that the removal of the battery pack of the cell phone to view the serial number constituted an unconstitutional search under the Fourth Amendment. (Id.) The People argued that the cell phone had been abandoned in the yard and as a result there was no search under the Fourth Amendment. (ECF No. 7-9 ¶ 12.) Moreover, the People argued that the timing of the discovery of the serial number was immaterial to the verdict. (Id. ¶ 11.) Petitioner also moved that the amendment of the burglary count of the indictment was erroneously allowed and that the verdict was against the great weight of the evidence. (ECF No. 7-8 ¶¶ 7-12.) The court denied the motion. (ECF No. 7-10, People v. Ward, Order dated February 8, 2011.)

III. The Direct Appeal

On June 21, 2011 petitioner appealed his verdict to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"). (See ECF No. 7-11.) Petitioner sought to reverse his conviction on the basis that the showup was unduly suggestive, the identification at trial was erroneously admitted, the people failed to disclose a document, the opening of the phone to view the serial number was unconstitutional, there was no factual support for the People's assertion that the phone was abandoned, the amendment of the indictment was erroneously allowed and that the verdict was against the great weight of the evidence. (See Id. at 29-95;ECF No. 7-12 at 22-63; ECF No. 7-13 at 4-29.) Petitioner pointed to his own testimony at trial, which alleged that the police lied about discovering the cell phone in the Cuestas' yard, and had instead found it on his person during the arrest. (See ECF No. 7-11 at 24.) He also recounted testimony that the clothing he was arrested in did not exactly match the description given by Mrs. Cuestas. (See Id. at 18-21; 90-2.) On April 23, 2014, the Appellate Division affirmed the judgement. (ECF No. 7-14.)

The Appellate Division ruled that the complainant's description of the petitioner was properly admitted into evidence. (ECF No. 7-14 at 2.) However, the court also ruled that Mrs. Cuestas' showup identification and in-court testimony surrounding the showup should not have been admitted. (Id.) The showup was carried out "in close geographic and tumoral proximity to the crime," the defendant was handcuffed and in the presence of police officers and stood alone. (Id. at 3.) In addition, Mrs. Cuestas was given two separate opportunities to identify the perpetrator and an arresting officer admitted "[t]here was no rush" to make the identification. (Id. at 3.) Despite the exclusion of the showup and identification testimony" the court found the error was "harmless beyond a reasonable doubt" given that the other evidence was "overwhelming." (ECF No. 7-14 at 3 (citing People v. Crimmins,36 N.Y.2d 230, 237 (1975)).) The court also ruled that the nondisclosure of the copy crime scene report with the handwritten note "does not warrant reversal, since [petitioner] failed to show that there was a 'reasonable possibility that the non-disclosure materially contributed to the result of the trial.'" (Id. (quoting C.P.L. § 240.75).) In making its decision the Appellate Division observed that, "[petitioner] who matched the complainant's description of the perpetrator, was apprehended in close proximity to the scene of the crime, after demonstrating consciousness of guilt by fleeing from police officers and engaging in a violent struggle with them. The wad of cash recovered from his person was similar to the amount stolen from the complainant's husband's wallet. In addition, the defendant's cell phone was recovered from the complainant's backyard." (Id.)

On May 7, 2014 petitioner moved for leave to appeal to the New York Court of Appeals ("Court of Appeals"), where he repeated his previous...